[Cite as In re Estate of Watson, 2018-Ohio-3209.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
In re Estate of Dennis D. Watson, Court of Appeals No. L-17-1139 Sr., Deceased Trial Court No. 2009EST2714
DECISION AND JUDGMENT
Decided: August 10, 2018
*****
Linde Hurst Webb, for appellants.
William J. Bingle, for appellee.
OSOWIK, J.
{¶ 1} This is an appeal from a judgment of the Lucas County Court of Common
Pleas, Probate Division, which entered a judgment for the distribution of funds from a
wrongful death settlement and denied appellants’ motion for relief from that judgment.
For the reasons set forth below, this court reverses the judgment of the probate court. {¶ 2} According to the record, Dennis D. Watson, Sr., died on August 16, 2009,
under circumstances leading to a wrongful death action by appellee’s administrator and
the decedent’s personal representative, Deleasa Rutherford. Ms. Rutherford successfully
obtained a $425,000 wrongful death settlement. At issue in this appeal is the probate
court’s distribution of wrongful death settlement funds totaling $217,470.29 among the
group of 15 statutory wrongful death beneficiaries alive at the time of the decedent’s
death.
{¶ 3} Nine statutory wrongful death beneficiaries received a final distribution
approved by the probate court on May 2, 2017, as follows: $104,892.95 to Deleasa
Rutherford (decedent’s daughter and appellee’s administrator), $52,446.48 to Ijuana
Watson (decedent’s daughter, now an adult), $26,223.24 to Terence Watson (decedent’s
son), $26,223.24 to Victor Watson (decedent’s son), $2,234.38 to Emmitt Watson
(decedent’s father, now deceased), $2,000 to Shannon M. Bunting (decedent’s daughter),
$2,000 to Christopher J. Morris (decedent’s son and hereafter Christopher “Cherry”
because “Cherry” appears most often in the record), $825 to June M. Gaston (decedent’s
sister), and $625 to Tyrone E. Watson (decedent’s brother).
{¶ 4} One statutory wrongful death beneficiary, Dennis D. Watson, Jr. (decedent’s
son), received an off-record distribution of $50,000 from Ms. Rutherford, despite the
probate court approving he receive nothing from the settlement due to his signed waiver.
{¶ 5} The remaining five statutory wrongful death beneficiaries received nothing
from the settlement per order of the probate court: Antonio V. Watson (decedent’s
2. brother), Roger Tracy Watson (decedent’s brother, now deceased), Joan Annette Watson
(decedent’s sister, now deceased), Shirley A. Foster (decedent’s sister, now deceased),
and Katyna L. Nickson (decedent’s sister). In the case of Antonio Watson, the probate
court order included a “note” that he may present a claim for up to $1,150 for
reimbursement of DNA and transcript preparation expenses.
{¶ 6} Appellants are seven of decedent’s statutory wrongful death beneficiaries,
Emmitt Watson, Antonio V. Watson, Tyrone E. Watson, June M. Gaston, Shirley A.
Foster, Shannon M. Bunting, and Christopher Cherry, who set forth three assignments of
error:
I. The trial court committed error prejudicial to the appellants when
it applied the legal standard “extraordinary circumstances” to avoid
vacating the original wrongful death distribution under Civ.R. 60(B).
II. The trial court erred when it factually assumed that the decedents
father, siblings and two children, Christopher Cherry and Shannon Bunting,
were aware of or were present at the wrongful death distribution hearings
on August 28, 2013, October 15, 2013 or as finally approved by the court
on December 12, 2013, notwithstanding the fact that it was uncontroverted
that none of them received notice by publication or otherwise.
III. The trial court committed error prejudicial to the appellant when
it allocated a nominal share to them and to the Estate of Emmitt Watson,
when the evidence at the hearings on March 14, 2016 and April 11, 2016
3. was being presented solely to show that appellants had a meritorious claim
under 60(B).
{¶ 7} The first two assignments of error will be addressed together. In support of
their first and second assignments of error, appellants argue appellee failed to notify them
of the proceedings under Ohio’s Wrongful Death Statute. Specifically, appellants argue
among them are statutory wrongful death beneficiaries pursuant to R.C. 2125.02(A)(1):
the father and two children of the decedent, who are “rebuttably presumed to have
suffered damages by reason of the wrongful death,” and the siblings of the decedent, who
are the “next of kin” of the decedent. As a result of appellee’s failure to notify them,
appellants argue they suffered by not being present at the August 28, 2013 and
October 15, 2013 wrongful death settlement and distribution hearings, respectively, so
the probate court could properly receive evidence of their damages to which they were
entitled under the statute. Appellants argue they sought relief from judgment on
October 15, 2014, as supplemented on February 26, 2015, under Civ.R. 60(B)(1), not
(B)(5). Appellants further argue the probate court abused its discretion when it denied
appellants’ motion for relief from judgment because “failure to serve the
Appellants/Claimants was a mistake under Civ.R. 60(B) and there is no need to prove
‘extraordinary circumstances.’”
{¶ 8} In response appellee argues the probate court did not abuse its discretion
when it found no “extraordinary circumstances” pursuant to Civ.R. 60(B) and denied
appellants’ motion for relief from judgment.
4. {¶ 9} “We review a trial court judgment denying a motion for relief from
judgment under an abuse of discretion standard.” Moore v. Moore, 6th Dist. Erie No.
E-17-011, 2018-Ohio-1545, ¶ 21, citing Kerger & Hartman, LLC v. Ajami, 6th Dist.
Lucas No. L-16-1135, 2017-Ohio-7352, ¶ 13. Abuse of discretion “‘connotes more than
an error of law or judgment; it implies that the court’s attitude is unreasonable, arbitrary
or unconscionable.’” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140
(1983), quoting State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).
However, because appellants’ arguments call upon us to evaluate whether the probate
court properly applied the “extraordinary circumstances” test in this matter, we review
that question of law de novo. Giancola v. Azem, 2018-Ohio-1694, ¶ 13, citing Arnott v.
Arnott, 132 Ohio St.3d 401, 2012-Ohio-3208, 972 N.E.2d 586, ¶ 17.
{¶ 10} A movant seeking relief from a court’s final judgment or order must
identify to the court one of the following reasons:
(1) mistake, inadvertence, surprise or excusable neglect; (2) newly
discovered evidence which by due diligence could not have been
discovered in time to move for a new trial under Rule 59(B); (3) fraud
(whether heretofore denominated intrinsic or extrinsic), misrepresentation
or other misconduct of an adverse party; (4) the judgment has been
satisfied, released or discharged, or a prior judgment upon which it is based
has been reversed or otherwise vacated, or it is no longer equitable that the
5. judgment should have prospective application; or (5) any other reason
justifying relief from the judgment.
Civ.R. 60(B).
{¶ 11} A movant “is entitled to relief from judgment under Civ.R. 60(B)(5) * * *
only if he can demonstrate any other reason not listed in Civ.R. 60(B)(1)-(4) that justifies
relief being granted. Ohio courts have routinely said that Civ.R. 60(B)(5) is not to be
used as a substitute for any other more specific provisions of Civ.R. 60(B)(1)-(4).” F.H.
v. K.M., 6th Dist. Lucas No. L-16-1275, 2017-Ohio-5681, ¶ 4, citing Caruso-Ciresi, Inc.
v. Lohman, 5 Ohio St.3d 64, 66, 448 N.E.2d 1365 (1983). To prevail on a Civ.R. 60(B)
motion, “the movant must demonstrate that: (1) the party has a meritorious defense or
claim to present if relief is granted; (2) the party is entitled to relief under one of the
grounds stated in Civ. R. 60(B)(1) through (5); and (3) the motion is made within a
reasonable time, and, where the grounds of relief are Civ.R. 60(B)(1), (2) or (3), not more
than one year after the judgment, order or proceeding was entered or taken.” GTE
Automatic Electric, Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146, 148, 351 N.E.2d 113
(1976), paragraph two of the syllabus.
{¶ 12} The first element requires appellants to “‘provide operative facts which, if
true, would constitute a meritorious defense; ultimate success on the merits need not be
established.’” Moore, 6th Dist. Erie No. E-17-011, 2018-Ohio-1545, at ¶ 22, quoting
Kerger, 6th Dist. Lucas No. L-16-1135, 2017-Ohio-7352, at ¶ 16; Colley v. Bazell, 64
Ohio St.2d 243, 247, 416 N.E.2d 605 (1980), fn. 3 (“a determination of [the underlying]
6. dispute is not appropriate where the issue is resolution of the motion for relief from
judgment. The movant’s burden is to allege a meritorious defense, not to prevail with
respect to the truth of the meritorious defense.”). Appellants argue they were entitled to
receive notice of the wrongful death settlement and distribution hearings and related court
judgments as statutory wrongful death beneficiaries who could be identified and with
reasonable diligence be contacted. Civ.R. 73(E); Sup.R. 70(B). We agree.
{¶ 13} It is well established that wrongful death claims belong exclusively to the
decedent’s statutory beneficiaries: “the surviving spouse, the children, and the parents of
the decedent, all of whom are rebuttably presumed to have suffered damages by reason of
the wrongful death, and for the exclusive benefit of the other next of kin of the decedent.”
R.C. 2125.02(A)(1). By the clear language of the statute, the surviving spouse, the
children, and the parents of the decedent are all rebuttably presumed to have suffered
damages by reason of the wrongful death. Id. The “other next of kin of the decedent” do
not share in that rebuttable presumption, but are included among the exclusive
beneficiaries under the wrongful death statute. Id. Because “the wrongful death statute
explicitly provides for parents, children, and spouse and then separately includes ‘other
next of kin,’ next of kin means the nearest surviving relatives after accounting for the
parents, children, or spouse.” In re Estate of Payne, 10th Dist. Franklin No. 04AP-1176,
2005-Ohio-2391, ¶ 14. Each appellant meets the requirements to be a statutory wrongful
death beneficiary. Thus, appellants are real parties in interest to the wrongful death
proceedings entitled to receive notice. Burwell v. Maynard, 21 Ohio St.2d 108, 110, 255
7. N.E.2d 628 (1970), citing Douglas v. Daniels Bros. Coal Co., 135 Ohio St. 641, 647, 22
N.E.2d 195 (1939).
{¶ 14} According to the wrongful death statute, decedent’s date of death “fixes
* * * the status of all beneficiaries of the civil action for wrongful death for purposes of
determining the damages suffered by them and the amount of damages to be awarded.”
R.C. 2125.02(A)(3)(a). The statutory wrongful death beneficiaries had vested interests in
the wrongful death settlement and distribution at the time of decedent’s death. Brinkman
v. Doughty, 140 Ohio App.3d 494, 501-502, 748 N.E.2d 116 (2d Dist.2000). Therefore,
the subsequent passing of appellants Emmitt Watson and Shirley A. Foster and non-
appellants Roger Tracy Watson and Joan Annette Watson did not waive their vested
interests derived as statutory wrongful death beneficiaries.
{¶ 15} Appellants point to the lack of actual notice to any of them. Appellee
argues notice by publication was sufficient. Notice by publication will not prevail where
“the party’s address is known or easily ascertainable.” See PHH Mtge. Corp. v. Prater,
133 Ohio St.3d 91, 2012-Ohio-3931, 975 N.E.2d 1008, ¶ 20. Appellee had the sole
obligation to perfect service of the various notices on appellants, irrespective of
appellants having some knowledge of the wrongful death litigation, because appellants
had no duty to assist appellee in fulfilling that obligation. Gliozzo v. Univ. Urologists of
Cleveland, Inc., 114 Ohio St.3d 141, 2007-Ohio-3762, 870 N.E.2d 714, ¶ 16, citing
Maryhew v. Yova, 11 Ohio St.3d 154, 159, 464 N.E.2d 538 (1984).
8. {¶ 16} First, appellants point to Shannon Bunting and Christopher Cherry, the
only two of the decedent’s seven children who appellee identified in probate court filings
since 2009 with “address unknown” designations. Appellants allege their addresses were
“available” and “discoverable,” but do not elaborate. The record shows appellee had the
knowledge and means of knowledge to locate Ms. Bunting and Mr. Cherry by non-
publication means.
{¶ 17} The record shows that during her September 6, 2012 deposition in the
underlying matter, Ms. Rutherford, appellee’s administrator, received her information for
the identification of her siblings, Ms. Bunting and Mr. Cherry, from her uncle, Tyrone E.
Watson (aka “Uncle Ronnie”), because she had never met either of them since they had
different mothers. “I talked to my uncles and them [sic]. They would know, and they
would say yeah [sic]. But I never met [Ms. Bunting and Mr. Cherry] personally.” Ms.
Rutherford also testified, “I would like to see my brothers and sisters.” Ms. Rutherford
admitted during deposition she knew how to contact “Uncle Ronnie” and identified his
exact address, indicating he lived on “the next street behind me.” However, she never
contacted him, according to the record.
{¶ 18} The probate court implied in its May 2, 2017 judgment entry that notice by
publication was actually served on Ms. Bunting and Mr. Cherry, as follows: “Notice by
publication had been granted by the Court on both the estate and wrongful death
applications, and many of decedent’s siblings and children attended both the settlement
and distribution hearings despite the lack of their addresses being documented in the
9. record.” Pursuant to appellants’ Civ.R. 60(B) motion, the notice by publication did not
reach Ms. Bunting and Mr. Cherry, and they did not attend the hearings. Nothing in the
record rebuts their claims they were missing from the “many” children present at the
settlement and distribution hearings.
{¶ 19} Civ.R. 73(E) governs service of notices in probate court, and the persons to
be served may differ depending on the specific pleading or paper being served. For
example, service pursuant to R.C. 2109.32(B)(1) of fiduciary’s accounting to “each heir
of an intestate estate” would go to persons described in R.C. 2105.06 (or as determined
by findings pursuant to R.C. 2123.05), but service of notice for a hearing pursuant to R.C.
2125.03(A) on distribution of a wrongful death settlement to each “beneficiary” would go
to persons described in R.C. 2125.02(A)(1).
{¶ 20} Under the rule the movant seeking service of notice by publication must
file an affidavit with the court that avers: “the name, usual place of residence, or
existence of the person to be served is unknown and cannot with reasonable diligence be
ascertained.” Civ.R. 73(E)(6). From 2009 to the end of 2013, appellee’s attorney
maintained in affidavits that although she could identify Ms. Bunting and Mr. Cherry, she
could not find addresses for them, despite “reasonable diligence” that included “searches
via the internet and Lexis-Nexis.” The affidavits did not describe the “searches via the
internet,” the “searches via * * * Lexis-Nexis,” nor the “numerous attempts to locate the
heirs of the Deceased” that did not include a computer search. During this time appellee
had the obligation to perfect service of the notices to Ms. Bunting and Mr. Cherry of the
10. August 28, 2013 hearing on the wrongful death settlement, the August 28, 2013 probate
court judgment approving the wrongful death settlement, the October 15, 2013 hearing on
the distribution of the wrongful death settlement, the November 15, 2013 magistrate
decision recommending the distribution of the wrongful death settlement, and the
December 12, 2013 probate court judgment approving the distribution of wrongful death
settlement.
{¶ 21} This evidence in the record of the lack of “reasonable diligence” directly
contradicts the probate court’s orders authorizing legal notice by publication on
December 17, 2009, and July 2, 2013. Mere recitation of the statements required by a
Civ.R. 73(E)(6) affidavit is insufficient. See In re S.K., 6th Dist. Lucas No. L-12-1234,
2013-Ohio-517, ¶ 13 (movant supported affidavit for publication with descriptions of the
computer searches and failed contacts made with state agencies, former employers, an
attorney, and sheriff); see also Morris v. Mull, 110 Ohio St. 623, 627, 144 N.E. 436
(1924), paragraph two of the syllabus (reasonable diligence includes employing the
knowledge and means of knowledge at a person’s command to locate the legatee of a
bequest before the person secures the bequest for himself).
{¶ 22} In addition to appellee’s administrator knowing how to find “Uncle
Ronnie,” on October 15, 2014, “Uncle Ronnie” filed a pro se “Motion to Vacate Order/
Judgment for Fraud” on behalf of himself and other appellants. “Uncle Ronnie” then
filed the certificate of service of the motion on November 26, 2014, and the notice
included the mailing address for Mr. Cherry, who also separately filed on December 9,
11. 2014, an appearance notice with the probate court. It is not clear why the pro se
certificate of service left off Ms. Bunting, but on December 9, 2014, she filed her own
appearance notice with the probate court in response to receiving a copy of the motion.
“Reasonable diligence” by appellee would have connected appellee, who knew how to
contact “Uncle Ronnie,” who, in turn, knew how to contact Ms. Bunting and Mr. Cherry.
The probate court magistrate’s January 25, 2017 decision states, “Ms. Rutherford denies
being informed that notice was needed to not only Mr. Cherry and Ms. Bunting but also
to her aunts and uncles.” However, we find “[t]he general rule is that ignorance of the
law is no excuse.” State ex rel. Bd. of Edn. v. Holt, 174 Ohio St. 55, 57, 186 N.E.2d 862
(1962). Appellee’s mistakes and ignorance fall within the purview of Civ.R. 60(B)(1).
{¶ 23} Second, appellants point to Emmitt Watson, the decedent’s father, who was
never identified as a statutory wrongful death beneficiary in any court filings and
hearings either by appellee or the court. The record shows appellee had the knowledge
and means of knowledge to locate Emmitt Watson by non-publication means.
{¶ 24} The decedent was appellant’s court-appointed guardian, and after
decedent’s death, appellant Shirley A. Foster, the decedent’s sister, was appointed the
successor guardian. Ms. Rutherford admitted during her September 6, 2012 deposition
she knew her grandfather, Emmitt Watson, was under guardianship, that the decedent had
been his guardian, and that her grandfather was probably living with “Uncle Ronnie” and
Ms. Foster after the decedent’s passing. Ms. Rutherford further admitted during the
12. deposition she knew how to contact her aunt Shirley because she believed her aunt lived
with her “Uncle Ronnie” and grandfather, and she knew how to find “Uncle Ronnie.”
{¶ 25} It is undisputed appellee’s legal notice by publication, journalized
August 6, 2013, for the wrongful death settlement and distribution hearing scheduled for
August 28, 2013, did not identify the decedent’s father, Emmitt Watson, in it. We find
Emmitt Watson was the opposite of an “unknown next of kin” pursuant to R.C.
2125.02(A)(1).
{¶ 26} In addition, the probate court magistrate’s January 25, 2017 decision states,
“Emmitt Watson should certainly have been included as a presumptive beneficiary of
wrongful death funds, and his address was known to Ms. Rutherford and that of his
successor guardian was certainly available to her also, so there is no question that Civil
Rule 60(B) is applicable to this case where publication with regard to him was
insufficient.” Despite that finding of fact, the magistrate recommended Emmitt Watson
receive nothing from the wrongful death settlement.
{¶ 27} Third, appellants point to the decedent’s siblings, Antonio V. Watson,
Tyrone E. Watson, June M. Gaston, and Shirley A. Foster, none of whom were ever
identified as statutory wrongful death beneficiaries to receive notice of any court filings
and hearings by appellee or the court. The record shows appellee had the knowledge and
means of knowledge to locate these appellants by non-publication means.
{¶ 28} The record shows that from the public records of the guardianship of
Emmitt Watson filed with the probate court as case No. 2002-GDN-002746, the names
13. and addresses of appellants Tyrone E. Watson, June M. Gaston, and Shirley A. Foster
were discoverable. From the October 24, 2012 deposition of Tyrone E. Watson taken in
the underlying matter, the names and whereabouts of appellants Antonio V. Watson,
Tyrone E. Watson, June M. Gaston, and Shirley A. Foster were provided. The record
shows Ms. Rutherford testified during her September 6, 2012 deposition she knew not
only the names and genders of the decedent’s siblings, but in some cases the city and
state where they lived, and, in the case of “Uncle Ronnie,” his exact address. Ms.
Rutherford further testified that she knew her “Uncle Ronnie” knew how to contact her
aunts and uncles. Further, the record contains “Uncle Ronnie’s” pro se 2014 motion to
vacate judgment, the motion’s certificate of service, and appearance notices alleging the
ease with which the appellants could be located.
{¶ 29} The probate court states in its May 2, 2017 judgment entry that both the
August 28, 2013 hearing on wrongful death settlement and the October 15, 2013 hearing
on distribution occurred “with most of the decedent’s siblings present” and “with many
of decedent’s siblings again present,” respectively. However, there is nothing in the
record to indicate that any of the decedent’s seven siblings were present, let alone “most”
or “many” of them. The probate court magistrate acknowledged in the record that “both
the August and October hearings were held off the record.” We find the record shows
two siblings, Roger Tracy Watson and Joan Ann Watson, died before the August 28,
2013 hearing, so they could not have attended. The record shows four additional sibling
appellants allege they did not receive notice and, therefore, did not attend the hearings.
14. That leaves only one sibling, Katyna Nickson, who might have attended the hearings if
she knew of them, but the record does not contain any indication she did. We do not find
that one out of seven siblings constitutes either “most” or “many” siblings, as the probate
court suggests.
{¶ 30} The probate court’s May 2, 2017 judgment entry, as with Ms. Bunting and
Mr. Cherry, also implied notice by publication was actually served on the sibling
appellants. However, once again, there is nothing in the record to indicate that any of the
decedent’s seven siblings was present at the wrongful death settlement and the
distribution hearings. We find the probate court magistrate’s January 25, 2017 decision
states, “While Ms. Rutherford diligently saw to it that settlement went through, she
clearly failed to use the same level of diligence in providing addresses for both first
degree and second degree next of kin.”
{¶ 31} The foregoing contradictions in the record regarding appellee’s notice
practices under the wrongful death statute and appellants’ lack of attendance at the
wrongful death settlement and distribution hearings satisfies the first element for
{¶ 32} The second element required appellants to seek relief under one of the
grounds stated in Civ.R. 60(B)(1) through (5). We find appellants satisfied the second
element. Ms. Rutherford stated in the record she did not know all appellants were
statutory wrongful death beneficiaries entitled to receive notice. Appellee’s failures to
ascertain with the necessary “reasonable diligence” the identity and contact information
15. for each appellant are rooted in mistake, inadvertence, or excusable neglect, which are
grounds stated in Civ.R. 60(B)(1).
{¶ 33} The third element required appellants to file the motion within a reasonable
time. We find appellants satisfied the third element. Appellants filed their pro se motion
to vacate judgment on October 15, 2014, as supplemented on February 26, 2015. Thus,
appellants’ original motion was filed within the one-year limit from the December 12,
2013 judgment of the probate court. Civ.R. 60(B)(1).
{¶ 34} Contrary to the probate court’s conclusion of law in its May 2, 2017
judgment entry, we do not find any mandate for requiring a showing of “extraordinary
circumstances” with respect to appellants’ Civ.R. 60(B)(1) motion. The probate court’s
conclusion relied on holdings in Connors v. Cook, 10th Dist. Franklin No. 03AP-708,
2004-Ohio-589, ¶ 9, citing Whitt v. Bennett, 82 Ohio App.3d 792, 797, 613 N.E.2d 667
(2d Dist.1992). However, those decisions clearly limited any requirement to show
“extraordinary circumstances” to a motion under Civ.R. 60(B)(5), which is not at issue in
this appeal. McBroom v. McBroom, 6th Dist. Lucas No. L-03-1027, 2003-Ohio-5198,
¶ 31.
{¶ 35} As journalized on May 2, 2017, the probate court denied appellant’s Civ.R.
60(B) motion, stating “The prior entry [of December 12, 2013] on settlement and
distribution of wrongful death proceeds shall remain in force. Extraordinary
circumstances have not been established to warrant vacating the initial distribution entry
under the circumstances even though decedent’s father, Emmitt Watson, was not
16. included in the original distribution.” We find the probate court abused its discretion
when it denied appellants’ motion for relief from judgment and erred when it required
appellants to prove “extraordinary circumstances” under Civ.R. 60(B)(1).
{¶ 36} Appellants’ first and second assignments of error are well-taken.
{¶ 37} In support of their third assignment of error, appellants argue the probate
court’s award of only nominal damages ignored their status at the time of the decedent’s
death pursuant to R.C. 2125.02(A)(3)(a). Appellants argue the probate court abused its
discretion when it unilaterally used the evidence presented for the Civ.R. 60(B) motion as
the evidence for a distribution pursuant to R.C. 2125.03. In further support, appellants
argue “Emmitt Watson was dependent on his son Dennis [the decedent], whose
caretaking [as the court-appointed guardian] kept his father out of a nursing home.”
Emmitt Watson’s death five years later was not relevant and did “not obviate the need to
find a distribution due to him, that should have happened at a time when he needed it the
most.” Appellants argue the “money that should have been given to guardianship, on
behalf of Emmitt Watson, would be used to hire needed caregivers that would continue to
assist Emmitt Watson at home – and keep him from a nursing home.” He was eventually
placed in a nursing home, referred to by appellants as “a horrible result.” Then because
of “the need to get their father out of the nursing home,” Emmitt Watson moved to St.
Louis in 2012 where he lived with appellant June M. Gaston until his death in 2014.
{¶ 38} In response, appellee argues the probate court did not abuse its discretion
when it determined the wrongful death settlement distribution pursuant to R.C.
17. 2125.02(A)(2), (A)(3)(b)(i), and (B)(1) to (5). Appellee argues we must give deference
to “the presumption that the findings of the Trial Court are correct, because the Trial
Judge is best able to view the witnesses and observe their demeanor, gestures and voice
inflection and use those observations in weighing the credibility of the testimony.”
Under the “totality of circumstances” the probate court did not err when it “did not find
the ‘extraordinary circumstances’ * * * to justify a vacation of the initial wrongful death
settlement proposal.”
{¶ 39} Having found appellants met their Civ.R. 60(B)(1) burden, appellants did
not have the additional burden to prove their wrongful death damages during the Civ.R.
60(B)(1) hearings. A hearing for the individual presentation of appellants’ damages
would be pursuant to R.C. 2125.02, not Civ.R. 60(B)(1). “[E]ach statutory wrongful
death beneficiary’s claim is considered separate and distinct from the claim of the estate,
and from each other, pursuant to R.C. 2125.02(A)(1).” Clark v. Scarpelli, 91 Ohio St.3d
271, 281, 744 N.E.2d 719 (2001), citing Wood v. Shepard, 38 Ohio St.3d 86, 90, 526
N.E.2d 1089 (1988).
{¶ 40} It is well-settled the appellants who are “other next of kin” without the
presumption of damage had rights to submit proof of damages under the wrongful death
statute. Ramage v. Cent. Ohio Emergency Servs., Inc., 64 Ohio St.3d 97, 97, 592 N.E.2d
828 (1992), paragraph two of the syllabus (“Pursuant to the Ohio wrongful death statute,
R.C. 2125.02, other next of kin, although not presumed to have sustained damages, may
recover damages for mental anguish and loss of society upon proper proof thereof, even
18. though there is a surviving parent, spouse, or minor children.”). “Damages for mental
anguish suffered by the decedent’s next of kin are in addition to, not in lieu of, other
wrongful death damages.” Couture v. Toledo Clinic, Inc., 6th Dist. Lucas No. L-07-1277,
2008-Ohio-5632, ¶ 32, citing Ramage at 105-106.
{¶ 41} The probate court’s January 25 and May 2, 2017 judgment entries contain
findings of “fact” that improperly transformed the evidence from the requirements
pursuant to Civ.R. 60(B)(1) into the requirements pursuant to R.C. 2125.02. The record
shows the probate court did not hold the March 14 and April 11, 2016 hearings to reopen
its wrongful death settlement and distribution judgment entries journalized on August 28
and December 12, 2013, respectively. Rather, as stated by the probate court’s judgment
entry journalized February 27, 2015, the hearings for appellants’ Civ.R. 60(B)(1) motion
were only joined by the probate court’s consideration of a proposed additional $12,100
wrongful death settlement distribution to Ms. Rutherford (to bring her distribution up to
$116,992.95).
{¶ 42} We find the probate court abused its discretion when its May 2, 2017 entry
showed it added to its December 12, 2013 judgment additional wrongful death settlement
distributions based on the Civ.R. 60(B)(1) testimony elicited on March 14 and April 11,
2016.
{¶ 43} Appellants’ third assignment of error is well-taken.
19. {¶ 44} The judgment of the Lucas County Court of Common Pleas, Probate
Division, is reversed. This matter is remanded for proceedings consistent with this
decision. Appellee is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment reversed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________ JUDGE Thomas J. Osowik, J. _______________________________ James D. Jensen, J. JUDGE CONCUR. _______________________________ JUDGE
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.
20.